In this Texas case, the Innocence Project sticks up for a prosecutor

AUSTIN — Attorneys with the group that helped exonerate Texan Michael Morton two decades after he was wrongly convicted of killing his wife were back at the Texas Supreme Court on Wednesday. But this time, instead of uncovering prosecutorial misconduct, they were sticking up for a former prosecuting attorney who they say should be a model for how to do the job.

Eric Hillman was an assistant district attorney in Nueces County who was fired in 2014 after refusing to follow a supervisor’s order to hide evidence that was favorable to a defendant in a felony intoxication assault case.

The New York-based Innocence Project took on Hillman’s case in March after lower courts dismissed his wrongful termination lawsuit, citing Texas sovereign immunity laws that protect government agencies from lawsuits in the interest of saving taxpayers money.

Hillman’s attorneys, Chris Gale and Philip Durst, a lawyer with the Innocence Project, argued that his firing goes against a state law designed to prevent wrongful convictions. They also asked the court to amend a 1985 ruling to give prosecutors and district attorneys additional protection if they are fired for refusing to break the law.

“The state has had more exonerations than any other, and has taken remarkable steps to prevent wrongful convictions by passing a series of laws to correct the system’s flaws,” said Nina Morrison, an attorney with the Innocence Project, in a statement. “But these new laws can only work if the prosecutors who enforce them are also protected.”

The Innocence Project helped argue the case before the Supreme Court, the first time in the organization’s 27-year history that its lawyers appeared in court on behalf of a prosecutor. The nonprofit legal group is best known for helping exonerate 350 wrongfully convicted individuals.

Among these exonerations is Michael Morton, a Williamson County resident whose case has been at the forefront of Hillman’s argument. Morton spent 25 years in prison for the 1986 murder of his wife, a crime which he did not commit. After he was freed in 2011, a post-conviction investigation found that the former prosecutor on the case intentionally hid evidence that would have pointed to Morton’s innocence.

In response, the Texas Legislature created the Michael Morton Act in 2013, which legally requires prosecutors to turn over all evidence to the defense in a criminal case, whether they believe that informatoin could impact the outcome or not.

In a brief filed in late March, the Innocence Project called Hillman’s case a “critical test” of the fundamental principles of the Morton Act. The project’s lawyers said allowing Hillman to be fired for following the requirementsof the law would leave the door open for future retaliation against conscientious prosecutors like Hillman.

Lawyers for Nueces County and the state argued Wednesday that other laws provide avenues for Hillman to seek redress.

“The class of people that the Michael Morton act is designed to protect is criminal defendants,” said Jeffrey Pruitt, a lawyer for Nueces County. “The plain language of the statute is designed to protect that class of people. It imposes a duty on prosecutors, but doesn’t give them any rights.”

Several justices asked Hillman’s attorneys if he could have sued under the federal Whistleblower Act, which protects public employees who report violations of the law.

Gale said whistleblower protections don’t apply to Hillman. “How does he become a whistleblower after he’s terminated? He can’t.”

Jason LaFond, a lawyer for the state, said Hillman’s case should not be an exceptionto the Supreme Court’s 1985 ruling, which protects workers who are fired for refusing to break the law, but does not apply to government employees. The high court has declined to alter the ruling in three previous cases.

“What the court has said is that they’re not going to tinker with it, they’re not going to extend it, and that it’s competent to address the issues,” LaFond said. “The same reasoning applies here.”

Justice Jeff Brown pressed the state’s attorneys to show how tax dollars are put to risk by allowing prosecutors and district attorneys to sue if they are fired for refusing to break the law.

Jeffrey Pruitt, a lawyer for Nueces County, said creating any exception is a “slippery slope.”

“What you’re inviting courts to do is decide…what is a serious enough crime that the government shouldn't be protected from immunity,” Pruitt said.